When they met, Jim Spellman was busy publicizing the Nasdaq Stock Market, then in its infancy. Mike Kelley was working in mortgage banking. Within their first year as a couple, they moved into Spellman’s post-Civil-War era Victorian row house in Washington, D.C., where their dinner parties became comfortable affairs attended by well-known journalists, political operatives and financial executives.

They sent out Christmas cards together, put their names on each other’s checking accounts and hosted each other’s families for holidays and getaways at Kelly’s Rehobeth Beach, Del., house. For 18 years, they relied on D.C.’s common law marriage statute, as many same-sex couples did in those twilight years before the Supreme Court legalized gay marriage nationally in 2015.

Then, nearly 20 years after their chance meeting at a downtown D.C. gym, the unfathomable happened. Kelly was diagnosed with advanced cancer, just as their wills were being updated. “We were giving each other new wills as a Christmas present,” says Spellman. The couple fought the bile duct cancer vigorously, using aggressive measures and even changing hospitals to find the best treatment. But the cancer moved quickly and in February 2013 Kelly died at age 68. Moreover, due to a complicated set of circumstances, they were unable to update their wills before Kelly passed away.

Kelly’s will and beneficiary statements predated their marriage and left everything to his deceased mother and four surviving siblings.

As if losing a husband of nearly two decades wasn’t stressful enough, within weeks it became clear that Kelly’s family would fight to deny that Spellman was Kelly’s spouse. Denying the marriage was critical to denying Spellman’s spousal rights to Kelly’s estate, which included a beach home, land, an investment portfolio and a significant retirement annuity. (Financial Advisor  featured Kelly in its “Can This Millionaire Retire?” column in 2006).

What ensued was Spellman’s successful, but draining four-year, $100,000 legal battle, which should keep financial advisors, and anyone relying on common law statutes for legal protection, awake at night.

“Family will happily recognize you as a couple for years until money comes into play and then they’ll say, ‘Oh, they were just friends,’” said Spellman’s attorney, Ugo Colella, a partner with Duane Morris in Washington D.C.

The family began the process of probating Kelly’s will in Delaware, a strategic move since the state does not recognize common law marriage.
Spellman girthed for battle. “My goal at that point was to use our common law marriage in D.C. to obtain spousal rights,” he says. “I asked the family to recognize me as a spouse, and when they said ‘no,’ it left me no other avenue but to litigate. We filed in D.C. and Delaware within the week, asking the courts in both jurisdictions to recognize me as a spouse.”

The four years of court battles that followed were fought primarily to establish that D.C. had jurisdiction over the case. That was critical, says Colella, for purposes of applying D.C.’s common law marriage law, which doesn’t exist in Delaware. The first D.C. judge denied jurisdiction and dismissed the case. A successful appeal overruled that decision and remanded the case to the lower court in D.C. to determine if Kelly and Spellman were married.  Meanwhile, the case to probate the will in Delaware was on hold, awaiting the jurisdiction decision.

Having lost the appeal, Kelly’s siblings decided to settle, offering Spellman $625,000, which he accepted. “It was about the same amount I would have gotten as a spouse, before legal costs,” he says. He was also granted the right to be buried alongside Kelly and share his burial stone. “This was so important,” he adds. “Michael endures in my life.”

“I think the family saw the writing on the wall,” says Colella. “It would be nearly impossible to argue that Jim had no spousal rights at that point, once D.C. had affirmed jurisdiction.” But just in case, Spellman had lined up 100 witnesses who were willing to testify that he and Kelly were a married couple.
Kelly’s family declined to comment through their attorney Rebecca Shankman at Ain Bank Law in Washington, D.C.

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